Since 1994, South Africa has been hailed as one of the African countries where civil liberties are enshrined and protected by a progressive Constitution. However, recent draft legislation proposed by the Film and Publication Board (FPB) which would regulate online content has left many people stunned by the degree of poorly-defined yet draconian and far-reaching censorship provisions for online content.
The regulation seems to apply to films and games distributed online (regardless of subject matter), as well as to publications containing certain loosely-described forms of sex, violence and hate speech:
5.1.1 Any person who intends to distribute any film, game, or certain publication in the Republic of South Africa shall first comply with section 18(1) of the Act by applying, in the prescribed manner, for registration as film or game and publications distributor.
5.1.2 In the event that such film, game or publication is in a digital form or format intended for distribution online using the internet or other mobile platforms, the distributor may bring an application to the Board for the conclusion of an online distribution agreement, in terms of which the distributor, upon payment of the fee prescribed from time to time by the Minister of DOC [Department of Communication] as the Executive Authority, may classify its online content on behalf of the Board, using the Board’s classification Guidelines …
The implication here is that video bloggers or any other kind of digital creator who create content and upload it to services such as YouTube, Vimeo or any other platform and do not register as distributors, run the risk of falling foul of the regulations, and face the prospect of FPB officers knocking on their door. As a „solution“ the Board has provided a mechanism which places the burden of classifying such content onto Internet intermediaries (without actually providing an exception for user-generated content):
7.5 In the event that such content is a video clip on YouTube or any other global digital media platform, the Board may of its own accord refer such video clip to the Classification Committee of the Board for classification.
7.7 Upon classification, the Board shall dispatch a copy of the classification decision and an invoice payable by the online distributor within 30 days, in respect of the classification of the content in question.
In this case, an „online distributor“ might be a South African ISP, despite the fact that they might have no connection with any „global digital media platform“ who might be hosting the the content. And no provision seems to be made for content uploaded via non-local services. In either case, the draft presumes that ISPs have both the capacity and the will to take down the original video, and to upload a new, classified, version containing the FPB’s logo:
7.10 The online distributor shall, from the date of being notified by the Board in writing of the classification decision, take down the unclassified video clip, substitute the same with the one that has been classified by the Board, and display the Film and Publication Board Logo and classification decision as illustrated in clause 5.1.6.
In South Africa, classification by the FPB is already required for offline films, games and proscribed publications, and the proposed regulation purports to be extending the classification scheme to online versions of those materials.
Another disturbing clause states that:
7.4 With regard to any other content distributed online, the Board shall have the power to order an administrator of any online platform to take down any content that the Board may deem to be potentially harmful and disturbing to children of certain ages.
So online platform can be compelled to to take down any online content that the Board may deem to be potentially harmful and disturbing. However, traditional publishers are subject to no such extrajudicial censorship.
In terms of the definition of what might be deemed harmful and disturbing, the draft’s background section gives an example of non-sexual videos that, even under the current law, were issued a classification by the FPB. One example cited was two videos, currently hosted on YouTube in which an evangelical pastor orders members of his congregation, some of whom were minors, to graze like cattle and drink petrol. Under the new proposed regulation, the FPB would be able to order such videos — which are obviously newsworthy and in the public interest to be seen as news — to be deleted from the Internet.
The juxtaposition of old-fashioned moral censorship, with it’s narrowly prudish preoccupation with depictions of sex and violence, alongside attempts to control the creation and distribution of digital films, games or other publications has been seen by some analysts as an attempt by the government to use the FPB as a mechanism of state control over civil society debate and criticism of the government, without consideration for broader free speech or public interest rights. In their analysis, the Electronic Freedom Foundation go so far as to argue that it bears the hallmarks of „… being the response to a wish-list from a single, puritanical special interest group.“
In this respect, it is an alarming return to the censorship rules of the apartheid era, when many books, films, and other cultural works were banned for being dangerous, subversive or obscene. These include Mary Shelley’s Frankenstein, which was deemed obscene, the children’s novel Black Beauty (a story about a horse) which was banned because of the title, or the 1967 film Guess Who’s Coming to Dinner which was banned because of its depiction of a multiracial relationship.
And while analysis has shown that some clauses in the draft proposal are, in fact, unconstitutional and as such are likely to be struck down by the Constitutional Court, the proposed legislation is a worrying signal of how the government sees the role of regulatory legislation of digital content.
The period of public comment on the legislation closed in mid-July, and the Board is now soliciting commentary from other spheres. In the meantime, other surveillance and censorship activity by the government is causing non-profit, academic and other groups to ask serious questions about the status of freedom in post-1994 South Africa.